SUBJECT: This Circular provides clarification of
the procedure for determining impairment ratings for Part E claims.

Under Part E of the Energy
Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), as
amended (42 U.S.C. § 7384 et seq.) the Secretary of Labor is required to
determine minimum impairment ratings “in accordance with” the American Medical
Association’s (AMA’s) Guides to the Evaluation of Permanent Impairment (the
Guides). 42 U.S.C. § 7385s-2(b). The Division of Energy Employees
Occupational Illness Compensation (DEEOIC), in its implementing regulations,
requires that impairments be evaluated in accordance with the “current edition”
of the Guides. 20 C.F.R. § 30.901(b). The Guides provide
instructions to rating physicians to determine the total percentage of whole
body impairment due to injury or illness.

At the time that the amendments to the Act creating
Part E were enacted (October 28, 2004), and as of the effective date of DEEOIC’s
implementing regulations (February 27, 2007), the current edition of the Guides
was the Fifth Edition. In January of 2008, the AMA published the Sixth Edition
of the Guides. In the interest of congruity and fairness to claimants,
DEEOIC has concluded that evaluations to determine percentages for impairment
claims submitted by Part E claimants must be made using the Fifth Edition of
the Guides.

Following consultation with DEEOIC medical
professionals, the Division has determined that the Sixth Edition of the Guides
represent a major departure from the Fifth Edition, and would likely have a significant
impact on claimants applying for impairment benefits under Part E. This impact
will negatively affect most claims submitted by lowering the percentage of
impairment, and add unnecessary delays to the time required to receive an
evaluation. DEEOIC has determined that continued use of the Fifth Edition will
most benefit EEOICPA Part E claimants, and will result in a more expedient
evaluation and compensation process. Additionally, all prior impairment
evaluations were performed based on the Fifth Edition of the Guides. A
change to the Sixth Edition methodology would unfairly penalize future
claimants who file for impairment benefits vis-à-vis previous claimants. Claimants
who have already received impairment awards, yet wish to have their percentages
reevaluated due to changed circumstances, would likewise be unfairly affected
by transition to the Sixth Edition.

As has been discussed, the Act is silent on the edition
of the Guides to be used in Part E impairment evaluations. 42 U.S.C. §
7385s-2(b). However, DEEOIC’s regulations require use of the “current edition”
of the Guides. 20 C.F.R. § 30.901(b). At the time of the regulation’s
effective date, the Fifth Edition was the “current edition” of the Guides.
As such, continued use of the Fifth Edition is appropriate given DEEOIC’s
administrative rules.

Retention of the Fifth Edition alleviates the need
for medical providers and DEEOIC District Medical Consultants (DMCs) to be
retrained using the methods required by the Sixth Edition. Part E claimants
seeking impairment evaluations will benefit from the greater availability of
physicians with training in the Fifth Edition, particularly in medically
underserved areas.